Plaintiffs in some 1,500 Risperdal lawsuits are awaiting the outcome of an appeal that could determine whether they may seek punitive damages against defendant Johnson & Johnson.

In October 2015, Judge Arnold New of the Philadelphia Court of Common Pleas determined that a New Jersey law should be applied to prohibit punitive damage awards in hundreds of Risperdal lawsuits. Judge New based his decision on a 2011 Pennsylvania Superior Court opinion, which he noted required him to apply the law of the state in which the allegedly improper conduct took place.

In the case of these Risperdal lawsuits, that state would be New Jersey, the home of J&J headquarters, where the company made its decisions about how to market Risperdal. A 1995 New Jersey law gives pharmaceutical companies broad protection from punitive damage awards.

Contradictory State and Federal Opinions

Judge New’s decision is in contrast to a decision made in a similar case in a Pennsylvania federal court – this time involving not Risperdal but Extra Strength Tylenol, another J&J product.

In May 2015, U.S. District Judge Lawrence F. Stengel determined that the law of Alabama, not New Jersey, applied in a case against J&J where the alleged victim took Extra Strength Tylenol, developed liver failure, and died, all in Alabama. Judge Stengel determined that Alabama law would allow the plaintiffs to seek unlimited punitive damages.

Judge New’s more defendant-friendly decision is now on its way to appeal in the Pennsylvania Superior Court. Attorneys who handle pharmaceutical products liability lawsuits like these Risperdal lawsuits say that the outcome of this appeal will be very important for pharmaceutical cases in Pennsylvania.

Judge New’s reasoning in the Risperdal lawsuit, filed in state court, was based on a footnote in the Pennsylvania Superior Court’s 2011 decision Daniel v. Wyeth Pharmaceuticals. The footnote says that when deciding what state’s law to apply to questions of punitive damages, one of the most important considerations is which state the allegedly wrongful conduct occurred in.

On the other hand, Judge Stengel noted that footnote from Daniel in his own decision, but characterized it as only “unpersuasive dicta” – meaning it was merely a comment by the court that was not directly relevant to the case at hand, and therefore not binding as a legal precedent.

Punitive Damages

Punitive damages are a type of damage award intended not just to compensate the plaintiff, but also to punish the defendant for some particularly blameworthy conduct. For example, a pharmaceutical company that purposely misleads patients and doctors about the dangers of a particular drug may ultimately be on the hook for punitive damages.

Awards of punitive damages are often much larger than awards of ordinary compensatory damages, and therefore they can substantially increase the stakes in products liability litigation

In general, the plaintiffs in these Risperdal lawsuits are suing over Risperdal complications like gynecomastia, the abnormal development of breast tissue in men and boys. Many of the Risperdal lawsuits also allege that J&J improperly marketed Risperdal for use in children at a time when the FDA had approved the drug for use only in adult patients.

The Risperdal lawsuit in Pennsylvania state court is pending in the Court of Common Pleas for Philadelphia County under case no. 100300296.